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 Environmental Protection Agency 40 CFR Part 52
[EPA-R09-OAR-2024-0563; FRL-12442-03-R9]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Interim final determination.
 SUMMARY: The Environmental Protection Agency (EPA) is making an interim final determination that the California Air Resources Board (CARB) has submitted a rule and other materials on behalf of the Mojave Desert Air Quality Management District (MDAQMD) that corrects deficiencies in its Clean Air Act (CAA or “Act”) State Implementation Plan (SIP) concerning reasonably available control technology (RACT) ozone nonattainment requirements for controlling emissions of oxides of nitrogen (NOX) from industrial, institutional, and commercial boilers, steam generators, and process heaters. This determination is based on a proposed approval, published elsewhere in this issue of the 
                        **Federal Register**
                        , of MDAQMD Rule 1157, which regulates this source category. The effect of this interim final determination is that the imposition of sanctions that were triggered by a previous limited disapproval by the EPA in 2023 is now deferred. If the EPA finalizes its approval of MDAQMD's submission, relief from these sanctions will become permanent.
 DATES: This interim final determination is effective December 26, 2024. However, comments will be accepted on or before January 27, 2025.
 ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-OAR-2024-0563 at 
                        *https://www.regulations.gov.*
                         For comments submitted at 
                        *Regulations.gov*, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from 
                        *Regulations.gov*. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
                        *i.e.,*
                         on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the 
                        **FOR FURTHER INFORMATION CONTACT**
                         section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit 
                        *https://www.epa.gov/​dockets/​commenting-epa-dockets.*
                         If you need assistance in a language other than English or if you are a person with a disability who needs a reasonable accommodation at no cost to you, please contact the person identified in the 
                        **FOR FURTHER INFORMATION CONTACT**
                         section.
 FOR FURTHER INFORMATION CONTACT: La Kenya Evans-Hopper, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105; phone: (415) 972-3245; email 
                        *evanshopper.lakenya@epa.gov.*


SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us,” and “our” refer to the EPA. Table of Contents I. Background II. The EPA's Evaluation and Action III. Statutory and Executive Order Reviews I. Background On June 16, 2023, the EPA issued a final rule (88 FR 39366, the “2023 final rule”) promulgating a limited approval and limited disapproval for the MDAQMD rule listed in Table 1, which was submitted by the California Air Resources Board (CARB) to the EPA for inclusion into the California SIP. Table 1—District Rule With Previous EPA Action
Rule No.
Rule title
Amended
Submitted
EPA action in 20231157
Boilers and Process Heaters
01/22/2018
05/23/2018
Limited Approval and Limited Disapproval.
 
 
 Areas classified as “Moderate” or above nonattainment for an ozone standard must implement RACT for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source of NOX
                     (see CAA section 182(b)(2), (f)). The MDAQMD contains parts of the West Mojave Desert ozone nonattainment area, which is classified as “Severe” nonattainment for the 1997, 2008, and 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS), as well as part of the Southeast Desert Modified Air Quality Management Area, which is classified as “Severe” nonattainment for the 1979 1-hour ozone NAAQS (see 40 CFR 81.305). In the 2023 final rule, we determined that although the MDAQMD rule strengthened the SIP and was largely consistent with the requirements of the CAA, the submitted rule included a deficiency that precluded our full approval of the rule into the SIP. The MDAQMD's previously submitted Rule 1157 stated, “[n]o compliance determination shall be established based on data obtained from compliance testing, including integrated sampling methods, during a start-up period or shut-down period.” This provision prohibits the use of data gathered during periods of startup and shutdown from being used for determining compliance with the applicable limit. The EPA found that the provision was not consistent with the EPA's SSM policy and Credible Evidence Rule because it forbids the use of credible evidence (compliance testing data generated during startup and shutdown periods) in establishing violations of the applicable emissions limit. In addition, the previously submitted Rule 1157 removed the definitions of “start-up period” and “shut-down period,” making the scope of this provision unclear. Pursuant to section 179 of the CAA and our regulations at 40 CFR part 52, the disapproval action on Rule 1157 under title I, part D started a sanctions clock for imposition of offset sanctions 18 months after the action's effective date of July 17, 2023, and highway sanctions six months later. On September 25, 2023, the MDAQMD revised Rule 1157, and on January 10, 2024, CARB submitted it to the EPA for approval into the California SIP, as shown in Table 2 below. Table 2—Submitted Rule
Local agency
Rule No.
Rule title
Amended
SubmittedMDAQMD
1157
Boilers and Process Heaters
09/25/23
01/10/24
 On July 10, 2024, the submittal for MDAQMD Rule 1157 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 appendix V. The revised MDAQMD Rule 1157 in Table 2 of this document is intended to address the disapproval issues in our June 16, 2023 final rule. In the Proposed Rules section of this 
                    **Federal Register**
                    , we have proposed approval of the revised MDAQMD Rule 1157. Based on the proposed action approving Rule 1157 into the California SIP, we are also making this interim final determination, effective on publication, to defer imposition of the offset sanctions and highway sanctions that were triggered by our 2023 final rule on Rule 1157, because we believe that the submittal corrects the deficiencies that triggered such sanctions. The EPA is providing the public with an opportunity to comment on this deferral of sanctions. If comments are submitted that change our assessment described in this interim final determination and the proposed approval of MDAQMD Rule 1157, we would take final action to lift this deferral of sanctions under 40 CFR 52.31. If no comments are submitted that change our assessment, then all sanctions and any sanction clocks triggered by our June 16, 2023 final rule would be permanently terminated on the effective date of our final approval of Rule 1157. II. The EPA's Evaluation and Action We are making an interim final determination to defer CAA section 179 sanctions associated with our limited disapproval action on June 16, 2023, of MDAQMD Rule 1157 with respect to the requirements of part D of title I of the CAA. This determination is based on our concurrent proposal to fully approve MDAQMD Rule 1157 which resolves the deficiencies that triggered sanctions under section 179 of the CAA. Because the EPA has preliminarily determined that MDAQMD Rule 1157, amended on September 25, 2023, addresses the limited disapproval issues under part D of title I of the CAA identified in our 2023 final rule and the amended rule is now fully approvable, relief from sanctions should be provided as quickly as possible. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the EPA is providing the public with a chance to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action. The EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. The EPA has reviewed the State's submittal and, through its proposed action, is indicating that it is more likely than not that the State has submitted a revision to the SIP that corrects deficiencies under part D of the Act that were the basis for the action that started the sanctions clocks. Therefore, it is not in the public interest to impose sanctions. The EPA believes that it is necessary to use the interim final rulemaking process to defer sanctions while the EPA completes its rulemaking process on the approvability of the State's submittal. Moreover, with respect to the effective date of this action, the EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this notice is to relieve a restriction (5 U.S.C. 553(d)(1)). III. Statutory and Executive Order Reviews This action defers sanctions and imposes no additional requirements. For that reason, this action: Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
                Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 
                    *et seq.*);
                Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 
                    *et seq.*);
                    ( print page 104888)
                Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
                Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
                Is not subject toExecutive Order 13045 (62 FR 19885, April 23, 1997) because it proposes to approve a State program;
                Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
                Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act. In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements Executive Order 12898 and defines EJ as, among other things, “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment.” The State did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving EJ for communities with EJ concerns. This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this action as discussed in section II of this preamble, including the basis for that finding. Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 24, 2025. Filing a petition for reconsideration by the EPA Administrator of this action does not affect the finality of this action for the purpose of judicial review, nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)). List of Subjects in 40 CFR Part 52 Environmental protection
Air pollution control
Carbon monoxide
Incorporation by reference
Intergovernmental relations
Nitrogen oxides
Ozone
Particulate matter
Reporting and recordkeeping requirements
 Dated: December 13, 2024. Martha Guzman Aceves, Regional Administrator, Region IX.


[FR Doc. 2024-30409 Filed 12-23-24; 8:45 am] BILLING CODE 6560-50-P